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Mediation Ethics

Ethics and best practices for mediation provider organizations: 7 years after Georgetown

by Diane Levin on November 11, 2009

in Mediation, Mediation Ethics, Tech and Business Tips for Mediators

ethical business practices for mediatorsAs readers of this blog know, the private practice of mediation in the United States remains unregulated by government.  Arguably, this absence of formal regulation, licensing, and credentialing does not diminish mediation’s standing as a profession.  It does, however, place weighty responsibility on the shoulders of U.S. mediators, collectively and individually, to protect the reputation of the profession and to build public confidence in mediation services.

Professional standards of conduct remind mediators to aspire to moral values or principles, and to strive for consistency between those values and practice.  But a professional ethos embraces more than the practice of mediation: those professional values should apply not to the delivery of services alone, but also to the business of mediation.

In May 2002, as part of a joint initiative, two respected institutions – the CPR Institute for Dispute Resolution and Georgetown University Law Center – drafted and approved Principles for ADR Provider Organizations (PDF).  These principles were created to provide guidance to “any entity or individual which holds itself out as managing or administering dispute resolution or conflict management services” and to encourage the responsible practice of ADR.  Among other things, they encompass values that include fairness, quality and accessibility of service, and competence of neutrals; and they emphasize the importance of establishing policies regarding confidentiality, internal or external ethical codes, and conflicts of interest. I have reproduced these principles below.

As I read these principles, the product of evident hard work and deliberation, I note that one essential ingredient is missing: diversity. In revisiting them today, mediators might draw inspiration for revisions from the example set by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 7 (PDF), which provides that:

Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers.

A 2009 version might emphasize the importance of measures that ensure that decisions relating to hiring, evaluation, and promotion of mediators are free from bias.

I invite you to read the principles yourself and ask: what would you add or change today to improve them for today and for the years ahead?

I.  Quality and Competence of Services

  1. The ADR Provider Organization should take all reasonable steps to maximize the quality and competence of its services, absent a clear and prominent disclaimer to the contrary.
  2. Absent a clear and prominent disclaimer to the contrary, the ADR Provider Organization should take all reasonable steps to maximize the likelihood that (i) the neutrals who provide services under its auspices are qualified and competent to conduct the processes and handle the kind of cases which the Organization will generally refer to them; and (ii) the neutral to whom a case is referred is competent to handle the specific matter referred.
  3. The ADR Provider Organization’s responsibilities under Principles I and I.a decrease as the ADR parties’ knowing involvement in screening and selecting the particular neutral increases.
  4. The ADR Provider Organization’s responsibilities under this Principle are continuing ones, which requires the ADR Provider Organization to take all reasonable steps to monitor and evaluate the performance of its affiliated neutrals.

II.  Information Regarding  Services and Operations

ADR Provider Organizations should take all reasonable steps to provide clear, accurate and understandable information about the following aspects of their services and operations:

  1. The nature of the ADR Provider Organization’s services, operations, and fees;
  2. The relevant economic, legal, professional or other relationships between the ADR Provider Organization and its affiliated neutrals;
  3. The ADR Provider Organization’s policies relating to confidentiality, organizational and individual conflicts of interests, and ethical standards for neutrals and the Organization;
  4. Training and qualifications requirements for neutrals affiliated with the Organization, as well as other selection criteria for affiliation; and
  5. The method by which neutrals are selected for service.

III.  Fairness and Impartiality

The ADR Provider Organization has an obligation to ensure that ADR processes provided under its auspices are fundamentally fair and conducted in an impartial manner.

IV.  Accessibility of Services

ADR Provider Organizations should take all reasonable steps, appropriate to their size, nature and resources, to provide access to their services at reasonable cost to low-income parties.

V.   Disclosure of Organizational Conflicts of Interest

  1. The ADR Provider Organization should disclose the existence of any interests or relationships which are reasonably likely to affect the impartiality or independence of the Organization or which might reasonably create the appearance that the Organization is biased against a party or favorable to another, including (i) any financial or other interest by the Organization in the outcome; (ii) any significant financial, business, organizational, professional or other relationship that the Organization has with any of the parties or their counsel, including a contractual stream of referrals, a de facto stream of referrals, or a funding relationship between a party and the organization; or (iii) any other significant source of bias or prejudice concerning the Organization which is reasonably likely to affect impartiality or might reasonably create an appearance of partiality or bias.
  2. The ADR Provider Organization shall decline to provide its services unless all parties choose to retain the Organization, following the required disclosures, except in circumstances where contract or applicable law requires otherwise.

VI.  Complaint and Grievance Mechanisms

ADR Provider Organizations should provide mechanisms for addressing grievances about the Organization, and its administration or the neutral services offered, and should disclose the nature and availability of the mechanisms to the parties in a clear, accurate and understandable manner. Complaint and grievance mechanisms should also provide a fair and impartial process for the affected neutral or other individual against whom a grievance has been made.

VII.  Ethical Guidelines

  1. ADR Provider Organizations should require affiliated neutrals to subscribe to a reputable internal or external ADR code of ethics, absent or in addition to a controlling statutory or professional code of ethics.
  2. ADR Provider Organizations should conduct themselves with integrity and evenhandedness in the management of their own disputes, finances, and other administrative matters.

VIII.  False or Misleading Communications

An ADR Provider Organization should not knowingly make false or misleading communications about its services. If settlement rates or other measures of reporting are communicated, information should be disclosed in a clear, accurate and understandable manner about how the rate is measured or calculated.

IX.   Confidentiality

An ADR Provider Organization should take all reasonable steps to protect the level of confidentiality agreed to by the parties, established by the organization or neutral, or set by applicable law or contract.

  1. ADR Provider Organizations should establish and disclose their policies relating to the confidentiality of their services and the processes offered consistent with the laws of the jurisdiction.
  2. ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the neutrals associated with the Organization.

ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the ADR participants.

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More like guidelines: ethical standards of conduct for mediators considered

by Diane Levin on October 12, 2009

in Mediation, Mediation Ethics

Model Standards of Conduct for mediators more like guidelinesSome of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.

That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.

As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters -  of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.

Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.

Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:

These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.

The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.

Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.

Unlike the fictional pirates in Hollywood films, they have real-world impact.

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What's in your agreement to mediate? Confirming confidentiality before the mediation starts

by Diane Levin on October 11, 2009

in Mediation, Mediation Ethics

Confidentiality in mediation - caveat emptorConfidentiality stands as a cornerstone of mediation practice. It encourages the resolution of disputes by allowing those in conflict to candidly discuss the issues they face, secure in the knowledge that what they say in the mediator’s presence cannot be held against them later. In pop culture parlance, what happens in Vegas, stays in Vegas.

Thousands of laws, judicial decisions, scholarly articles, and customary practice among neutrals speak to the important role that confidentiality plays and the value that institutions, users of ADR, and mediators themselves place upon it. Disputants reasonably expect that the disclosures they make will remain in the mediator’s confidence. Often mediators themselves establish or reinforce these expectations at the commencement of mediation by making an introductory statement intended to orient the parties to the process and establish basic guidelines for how the mediator and disputants will work together. This introduction usually includes reassurance by the mediator that what is discussed or disclosed will “stay in the room”. People rarely inquire further into what this means precisely; mediators themselves are sometimes overwhelmed by the difficulties in satisfactorily explaining confidentiality in all its complexity.

Despite these expectations, despite the professional and scholarly emphasis on its virtues, confidentiality is vulnerable and not always assured, as a recent case makes plain. In an article on her always informative Negotiation Law Blog, “Mediator Testifies for Insurance Carrier and Court Enforces Mediated Settlement Agreement against Policyholder“, Victoria Pynchon discusses with dismay Palmer v. State Farm General Insurance, a California case in which a mediator filed a declaration in support of an insurer’s motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings. You can read her unflinching criticism of the mediator’s conduct here. This case also prompted complex commercial litigation lawyer Stephen Goldberg to ask on his own blog, “Can Your Mediator Be Your Enemy?“, finding that sometimes, sadly, the answer may be yes.

So what’s a disputant to do to protect themselves up front? Mediators and parties typically enter into a signed agreement known as an agreement to mediate (PDF). Among other matters, this agreement customarily addresses the issue of confidentiality – its scope, exceptions, waiver, and the obligations of those involved to uphold it.  Typically such agreements include language prohibiting the parties from calling the mediator as a witness or from subpoenaing the mediator (PDF). Such a provision is important for mediators, for whom confidentiality – and impartiality – are stock in trade. Most of us who mediate have no wish to be in the position of disclosing information revealed to us in confidence or providing testimony that would most certainly give one side victory over the other.

But confidentiality provisions also protect the parties. Before mediating your dispute, review the language of the agreement to mediate with care. Make sure you know what you’re getting. I know that what I am about to say risks provoking cries of outrage from mediators who see mediation as a refuge from the legal system for ordinary people who shouldn’t have to hire lawyers, but needless to say, if you’re not an attorney or don’t have one representing you, consider getting competent legal advice before signing an agreement to mediate. It is after all a contract. If the Palmer case teaches us anything, it’s that parties – not just mediators – must take care to safeguard confidentiality.

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The right stuff: morality resources, articles, studies, and a course, all online

by Diane Levin on October 9, 2009

in Cool Stuff on the Web, Decision Making and Judgment, Mediation Ethics, Mind and Cognition, Online Games, Tools & Tests

Find your moral compass through resources, studies, a course all onlineGreat minds – and wits – have considered the difficulties of moral choice. Influential activist and thinker Martin Luther King, Jr., wrote, “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” (Bon vivant Mae West, who took a more pragmatic view, purportedly said, “Between two evils, I always pick the one I never tried before.”)

Moment by moment, life presents us with difficult choices and questions to confront. What are we to do in the face of moral dilemma? As moral actors, how do we decide? What guides us? What are the sources of moral values? Religion? Law? Or are they coded into our DNA? How do we apply moral values? Are moral principles universally held, transcending culture? Or are they shifting social constructs, dependent upon the vagaries of time and place?

Inside all of us is the philosopher who delights in wrestling with questions concerning moral decision making – and the devil’s advocate who likes to pose them. The internet holds much to stimulate us, particularly these outstanding resources on morality, moral psychology, and moral decision making:

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Mediation credentialing: what about mediation trainers?

by Diane Levin on June 24, 2009

in Mediation, Mediation Ethics, Mediation Training, Mediator Certification and Credentialing

questions for the mediation fieldMuch discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill.  That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.

Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public.  In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air – an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?

As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.

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Time for mediation certification in the U.S.? Not this way, thanks

March 17, 2009 Careers in Mediation

The Association for Conflict Resolution’s Family Section released the latest edition of its quarterly newsletter, Family Mediation News. A front page article insists in large typeface that “Certification of Mediators Needed Now More than Ever” (PDF).
Author Stephen K. Erickson, chair of ACR’s Taskforce on Mediator Certification, explains why he thinks so:
Certification of mediators is [...]

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Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?

June 10, 2008 Careers in Mediation

Last summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:
Almost every accredited or unaccredited university has [...]

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Mediator ethics: how professional codes of conduct fall short

January 29, 2008 Mediation Ethics

ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against [...]

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ABA establishes Committee on Mediator Ethical Guidance

April 3, 2007 Mediation

The American Bar Association Section of Dispute Resolution has announced the establishment of a Committee on Mediator Ethical Guidance.
Mediators are invited to submit to the Committee inquiries regarding ethical issues arising out of the practice of mediation, which will provide advisory responses.
According to Section Chair John Bickerman:
There is no greater way for consumers to have [...]

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All bets are off: should mediators and negotiators learn lessons from poker players?

May 31, 2006 Legal Issues

Here’s a follow up to last week’s post about the American Bar Association ethics opinion distinguishing between “puffing” on the one hand and “false statements of material fact” on the other in caucused mediations, and which bestowed its blessing upon the former but not the latter.
This week’s edition of Blawg Review links to a post [...]

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